Intellectual Property Law Commons^™

Dangerous Intellectual Property, Mark Bartholomew

Book Reviews

Rviewing IP Accidents: Negligence Liability in Intellectual Property, by Patrick R. Goold, Cambridge University Press, 2022.

The Fair Use/Fair Dealing Handbook, Jonathan Band, Jonathan Gerafi

Joint PIJIP/TLS Research Paper Series

More than 40 countries with over one-third of the world’s population have fair use or fair dealing provisions in their copyright laws. These countries are in all regions of the world and at all levels of development. The broad diffusion of fair use and fair dealing indicates that there is no basis for preventing the more widespread adoption of these doctrines, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments. This is particularly the case considering that the copyright laws in many “civil law” countries currently allow their courts to apply …

Access To Science & Scholarship: Building An Evidence Base To Support The Future Of Open Research Policy, Clarke & Esposito

Copyright, Fair Use, Scholarly Communication, etc.

The comprehensive report is the outcome of a National Science Foundation-funded workshop, identifying critical issues in open access publishing and how to address them

Today, the MIT Press is releasing a comprehensive report that addresses how open access policies shape research and what is needed to maximize their positive impact on the research ecosystem.

The report, entitled “Access to Science & Scholarship 2024: Building an Evidence Base to Support the Future of Open Research Policy,” is the outcome of a National Science Foundation-funded workshop held at the D.C. headquarters of the American Association for the Advancement of Science on September …

Is Sunlight The Best Disinfectant? The Role Of Regulation In Addressing Cybersecurity Concerns, Reagan Leverett

Vanderbilt Law Review

The technological landscape in the United States is changing rapidly, and this transformation carries with it unprecedented challenges for administrators, companies, and investors alike. In particular, cybersecurity concerns are growing in light of the new opportunities for cyber malfeasance in this landscape—opportunities to pillage corporate databases and exploit the sensitive consumer information housed therein. For administrators, these new threats challenge prevailing regulatory frameworks and demand novel solutions. For companies, this landscape brings financial and reputational threats. For stakeholders, the cyber era presents the risk of investment losses and, in some cases, loss of personal data.

The Securities and Exchange Commission …

Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Michigan Technology Law Review

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, those devices contain vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels, significantly constraining research. While copyright law traditionally conceives of research as the use of expressive works within institutional settings, we propose a broader conceptualization that embraces device research, including informal inquiries and DIY activities. Whether for the purposes of modification, repair, user innovation, or testing, device research …

The Danger Of Silence: The Negative Effect Of Supreme Court Hesitance To Establish A Bright-Line Rule For Determining Patent Subject Matter Eligibility, Amber N. Roibu

Touro Law Review

Ambiguity surrounding the interpretation of 35 U.S.C. § 101 and the ultimate application of the Alice/Mayo standard for determining patent subject matter eligibility has long plagued the courts, practitioners, and USPTO examiners alike. Maintaining a standard that leads to sheer confusion and, as a result, inconsistent rulings severely muddles the ultimate goal of patent law, to promote innovation. The Supreme Court has been presented with ample opportunities to address these issues, with the Solicitor General consistently recommending that it hear cases that deal with patent-eligibility debates. Nonetheless, the Supreme Court's continued hesitancy to grant certiorari on these cases only further …

Protection In A Virtual Reality: The Dire Need For Trademark And Copyright Law Expansion To Encompass Digital Content Within The Metaverse, Amber N. Roibu

Touro Law Review

The Metaverse has gained much popularity in recent years, leaving some people with a feeling of uncertainty, but all the while intriguing many others. The multifaceted interactions and activities that take place within the Metaverse have made it a virtual world fertile for not only creative expression but also infringement of existing trademark and copyright protected works. Hand-in-hand with the development of the Metaverse has come the fast-growing interest in buying and selling virtual goods, properties, and non-fungible tokens. To preserve their reputation, avoid costly litigation, and ultimately uphold the exclusive rights allotted to them as intellectual property owners, trademark …

Who Invented It? Streamlining Determination Of Patent Inventorship, Henry H. Perritt, Jr.

University of Miami Law Review

Disputes over inventorship are common in industries where new technology is important. Patents are invalid unless correct inventors are named on the patent, even when all the inventors have assigned their rights to the enterprise applying for a patent. The complexity of modern technology is such that an invention qualifying for a patent rarely is the work of only one individual. Employees and former employees frequently claim that they have been left off patent applications wrongfully. Patent law provides a variety of ways to correct inventorship both while such applications are being prosecuted in the U. S. Patent and Trademark …

A Us Perspective On Copyright And Free Trade Agreements, Marketa Trimble

Media & Informal Publications

Professor Trimble delivered a presentation for the 2024 International Congress of the International Literary and Artistic Association (ALAI), held in Santiago de Chile.

The topic of the Congress was "Copyright, International Trade, and Cultural Diversity," and Professor Trimble presented about U.S. perspectives on copyright and free trade agreements.

Streaming Service Arms Race: Protection And Distribution Of Live Sports Broadcasting In A Cord-Cutting Environment, Leo Bourgeois

Dalhousie Journal of Legal Studies

This paper highlights the disparity in meeting consumer expectations for broadcasting sports content. The current shift to online streaming services creates accessibility and affordability challenges, leading to an increase in illegal streaming. The existing copyright laws in Canada and the U.S. have some limitations in enforcing the rights of sports media rights holders against primary or secondary infringement, and intermediaries face difficulties in removing infringing content. While injunctions and site-blocking orders are potential solutions, they may not completely combat online piracy. A possible solution is a centralized streaming service to address piracy while improving customer satisfaction. However, concerns about feasibility, …

Questions And Answers On The Future Of Ip For Research And Innovation, Sean Flynn

Joint PIJIP/TLS Research Paper Series

This paper publishes the annotated contents of an interview with PIJIP Director Sean Flynn by the staff of WIPO’s work on the Future of IP. All questions relate to the future of copyright with respect to AI assisted innovation.

Author Remuneration In The Streaming Age – Exploitation Rights And Fair Remuneration Rules In The Eu, Martin Senftleben, Elena Izyumenko

Joint PIJIP/TLS Research Paper Series

The transition from linear to on-demand consumption of music, films and other copyrighted content on platforms like Spotify, Netflix and YouTube has given rise to the question whether authors and performers receive a fair share of streaming revenues. While these revenues are substantial and right holders may have the opportunity to control access to copyright-protected content on the basis of copyright protection, it is often not the creators themselves who benefit from growing streaming revenue and reinforced access controls. The issue has a global dimension. The Group of Latin American and Caribbean Countries (GRULAC) proposed that the World Intellectual Property …

Understanding Golf’S Civil War: An Antitrust Analysis And Discussion, Emma Hackett

BYU Law Review

For years, professional golf has been ruled by the PGA Tour. But in 2022, the PGA Tour’s monarchy started to crack when LIV Golf, a new Saudi-backed golf league, entered the scene and sued the PGA Tour for antitrust violations. Players and fans had to take sides: the legacy of the PGA Tour or the deep pockets of LIV Golf? The lawsuit resulted in a settlement between the entities, but the complaints exposed dealings engaged in by the PGA Tour that this Note argues are violations of the Sherman Act. Beyond illegality of the Tour’s acts, the dispute between LIV …

United States Centers For Disease Control And Prevention Scientific Integrity Policy

Copyright, Fair Use, Scholarly Communication, etc.

US CDC SIP

Brief Of 20 Professors Of Law And Public Knowledge As Amici Curiae In Support Of Affirmance, Charles Duan, Rachel Bamberger

Amicus Briefs & Court Filings

In Carroll Shelby Licensing v. Halicki, the U.S. Court of Appeals considers whether a car in a film is a "character" for purposes of copyright law. Character copyright protection has proven to be an especially difficult area of the law, and courts and commentators have struggled with the proper boundaries of such protection and whether characters are independently protectable works at all. This brief presents a novel legal argument for resolving the scope of character copyright, at least in the context of inanimate objects in creative works such as cars. While the case law and commentary has to date focused …

The Evolution Of Irs: A Brief History, Paul Royster

Copyright, Fair Use, Scholarly Communication, etc.

A history of institutional (and other) repositories 1980-2022: precursors and preconditions, environmental survey, 1990s the groundwork, 2000s the beginnings, 2010s expansion and rise of metrics, mergers and acquisitions, growth, features, nay-sayers and hesitations, the download button, Dear Author messages, progression of strategies, expert advice, what happened and what didn't, evolutionary radiation, advantages and opportunities.

A video of the preentation is at

https://www.youtube.com/watch?v=XFGjcrD-r64&list=PLO_aItZ7W0896xPLSSeq8nRcxZVMyd-ag

Fake Drake? Ai Music Generation Implicates Copyright And The Right Of Publicity, Hope Juzon

Washington Law Review

Artificial intelligence has contributed to music composition since the 1950s. Its contributions evolved from machines that produced simple melodies to programs that generate accurate vocal imitations of singers. Modern artificial intelligence relies on pre-existing—and often copyrighted—songs to create new music, the most common of which include vocal imitations of popular singers. Copyright law in the United States has yet to address how copyright holders’ rights are implicated when artificial intelligence programs are trained on protected works. As a result, these rights holders across disciplines and sectors have filed complaints alleging infringement of their works. While copyright holders await their fate, …

Indigenous Copyright Concepts And Indigenous Data Sovereignty: How Libraries And Archives Can Support It, Rebecca Chapman, Rebecca Plevel

Law Librarian Journal Articles

U.S. copyright law does not account for Indigenous knowledge. These items, such as stories, dances, songs, and oral teachings are data and works authored by a sovereign com- munity, not just individuals. Indigenous data sovereignty provides that data and cultural knowledge are subject to Tribal protections. Tribes have the right as a sovereign nation to govern the collection, ownership, and application of its own data and cultural knowledge. Assimilating Indigenous knowledge into non-Indigenous works is a copyright issue from an Indigenous perspective. Librarians can identify these Indigenous copyright issues to support local Indigenous Peoples and promote efforts toward achieving Indigenous …

Ip @ The U - October 2024, Jorge L. Contreras

Law School Historical Documents

Welcome to IP @ the U, a periodic newsletter for students, alumni, faculty and friends of the University of Utah College of Law's Program on Intellectual Property and Technology Law. This issue covers a range of IP highlights from the beginning of the Fall 2024 semester.

Infringing Uses, Not Works, Timothy J. Mcfarlin

South Carolina Law Review

No abstract provided.

Rethinking The Pharmaceutical Knowledge- Economy: Patents, The Trips Agreement, And Skewed Utilitarianism In The Evolving Ideological Paradigms, Morris Odeh

Articles, Book Chapters, & Popular Press

The TRIPS Agreement introduced a unique globalized pharmaceutical patent economy. This article examines the social costs of this patent regime in low-income countries and makes three contributions. Firstly, it highlights how, in the early development of the patent system, nations perceived patents as privileges and displayed considerable reluctance in protecting pharmaceutical products and processes. This allowed net importers of technologies to replicate foreign innovations without the constraints of IP rights, and in some cases, invalidate unnecessary patents. However, this took a different turn towards the tail end of the 20th century when the patent norms and rules were harmonized and …

The Rights And Obligations Of Mod Creators In Canadian Videogame Law, Christian Clavette

Canadian Journal of Law and Technology

This article explores the legal landscape for mod creators in the Canadian video game industry, examining their rights and obligations under Canadian copyright law and End User License Agreements (EULAs). With the growth of the industry, independent creators have increasingly contributed to game development through “mods,” which modify or enhance existing games. While these mods offer significant creative and commercial potential, they also pose legal challenges, particularly regarding copyright infringement and the enforceability of EULAs. The article evaluates relevant Canadian and U.S. case law, highlighting key differences and similarities, and discusses how these legal principles apply to mods. It also …

Classifying Open Access Business Models, Tasha Mellins-Cohen

Copyright, Fair Use, Scholarly Communication, etc.

The proliferation of open access (OA) business models has been rapid, presenting challenges for stakeholders in communicating and working effectively with one another. This article aims to clarify terminologies and address the inconsistencies and gaps in previous attempts to categorize OA models, supporting informed decision-making. It presents five core types, each with distinct characteristics and implications for funding, equity, and implementation. Operating at the level of individual pieces of content, transactional models expose authors to the financial implications of their decisions to make content OA; they often must pay out of their own funds. Driven by negotiations between libraries or …

Narratives Unbound: The Role Of Queer Transformative Works In Shaping Legal And Cultural Landscapes, Morgan E. Spencer

William & Mary Journal of Race, Gender, and Social Justice

Queer transformative works promote social justice in marginalized queer communities by offering much-needed representation and visibility. These works fill an essential gap in a societal storytelling canon historically bereft of such material. Notwithstanding this societal benefit, these works pose complex legal and ethical challenges at the crossroads of copyright protections and creative expression. This Note examines the cultural significance and social benefits of queer transformative works in combination with an analysis of the legal landscape and ethical considerations that such works must navigate to maintain a harmonious existence with the original works that inspired them. A more nuanced understanding of …

Client Confidentiality As Data Security, Jonah Perlin

Georgetown Law Faculty Publications and Other Works

The duty of confidentiality has been a cornerstone of the attorney-client relationship for more than four centuries. Historically, this duty was not difficult to discharge. All a lawyer had to do to comply was not affirmatively share client information in public without consent. But that has all changed. The same technologies that provide unprecedented benefits of authorized access by lawyers and their clients create unprecedented risks of unauthorized access by others. As a result, although the duty of confidentiality was once synonymous with a duty to keep client confidences secret, today the duty necessitates that lawyers keep client confidences secure …

Patent Your Passenger Pigeons: De-Extinction Technologies & Ramifications Of The Product Of Nature Doctrine, Tyler Brooks

William & Mary Environmental Law and Policy Review

Part I of this Note will provide a brief overview of the current methods and scientific breakthroughs that are actively being pursued by private actors (particularly the bioengineering company Colossal Biosciences) to make de-extinct creatures, establishing the crucial point that any technique used to create such an animal will inherently fall short of being able to replicate an extinct species with any one hundred percent accuracy. This section will then briefly speak as to why private actors are looking to invest in de-extinction technologies in the first place, setting out how de-extinction technologies might one day prove incredibly profitable for …

Trade Secrets In The Artificial Intelligence Era, John G. Sprankling

South Carolina Law Review

No abstract provided.

Access To Justice As Access To Data, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

This Keynote Address, delivered in celebration of the launch of SCALES, discusses the importance of making local and state court data available for research on the functioning of the American civil justice system. It describes the regulatory and administrative challenges of obtaining good-quality data from courts. It calls for a concerted effort among researchers and policymakers to develop open-source technologies for the development of case management systems and data infrastructure. And it urges researchers to foster a collaborative research ecosystem based on broadly sharing court data.

A Right To Be Left Dead, Mark Bartholomew

Journal Articles

Technology forces us to contemplate a counterpart to the right of privacy—Brandeis and Warren’s “right to be let alone”—for the age of artificial intelligence: the right to be left dead. Traditionally, it has been presumed that even if Brandeis and Warren’s right constitutes “the most comprehensive of rights and the right most valued by civilized men,” it does not apply to the dead. The question is whether we need a new approach at a time when technology can reanimate anyone and make them behave in a manner indistinguishable from their living presence. This Article interrogates the need for a right …

Intellectual Property, Genetic Resources, And Associated Traditional Knowledge, N.S. Gopalakrishnan, Srividhya Ragavan, Narendran Thiruthy

Faculty Scholarship

The recently concluded WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge mandates disclosure requirements in patent applications, thereby creating an obligation to attribute the use of genetic resources and traditional knowledge. The WIPO member countries thus have an opportunity to modify their national patent laws, so that they can effectively control genetic resources and traditional knowledge. This article examines the choices that the biodiversity-rich countries have when designing their national legal systems to implement the treaty.